On the Contrary

It's too bad that the word "Orwellian" is losing its power from overuse, because sometimes no other word will do. Sad to say, it's often used appropriately. There's no better word to describe U.S. Attorney General John Ashcroft's depiction of himself as a freedom fighter. "We're not sacrificing civil liberties, we're securing civil liberties," he stated on National Public Radio on Sept. 11, 2002. That's why the administration has claimed the unilateral power to designate any one of us a terrorist and subject to indefinite detention without a trial -- or even knowledge of the charges against us. That's why it conducts secret searches of libraries and bookstores and who knows whose offices or computers: It wants to protect our liberty.

Is this what the public needs to believe, or can Ashcroft afford to be honest with us and acknowledge that he doesn't trust or value liberty? (I doubt he even understands the notion.) Recent polls give civil libertarians reason for both hope and despair. The bad news first:

The State of the First Amendment 2002 report issued by the Freedom Forum reveals that hostility to First Amendment rights is increasing. The forum has surveyed public attitudes toward the First Amendment for the past five years, and, as its 2002 report observes, opposition to free speech engendered by a wave of political correctness in the 1990s has been exacerbated, predictably, by the threat of terrorism. This year, about half (49 percent) of survey respondents said that the First Amendment "goes too far" in guaranteeing rights, compared with 39 percent who answered similarly in 2001 and 22 percent in 2000.

Press freedoms and the rights to dissent or offend were singled out for disapprobation: 42 percent of respondents said that the press enjoys too much freedom and that newspapers should not be allowed to "freely criticize" U.S. military strategy and performance. Forty-one percent favored restricting the freedom of college and university professors to "criticize government military policy" during wartime. Forty-six percent of respondents supported a constitutional amendment prohibiting flag desecration. And 64 percent said that people should not be allowed to make racially offensive remarks in public.

Freedom of religion did not fare much better than freedom of speech. It's not surprising that 48 percent of respondents agreed that the government should have the power to monitor religious groups, even at the expense of members' religious freedom, in the interests of national security. (The trouble is that freedom is often infringed in the name but not the actual interests of security.) But it is discouraging that nearly the same number of respondents -- 42 percent -- endorsed religious discrimination, agreeing that the government should have more power to monitor Muslims residing legally in the United States than it has to monitor other religious groups.

It's small comfort that opposition to particular First Amendment rights, in practice, was accompanied by support for First Amendment rights in the abstract. Eighty-three percent of respondents considered religious freedom essential, and 94 percent agreed that people should be able to express unpopular opinions. This is a familiar pattern: People will often profess support for individual rights until they're asked about the rights of people they fear or dislike, or the exercise of rights under circumstances of which they disapprove.

So what's the good news? A September 2002 NPR/Kaiser Family Foundation/Kennedy School of Government poll discerned a "small shift toward concern about civil liberties" since last year (when a similar poll was conducted). In response to a question about the treatment of Jose Padilla, the American citizen summarily detained as a military combatant and informally accused of planning to detonate a dirty bomb in the United States, 58 percent of respondents agreed that "all American citizens are entitled to be represented by a lawyer and have their day in court." (Well, it's not exactly good news that less than two-thirds of survey respondents agreed that American citizens are entitled to due process, but, these days, it's better news than I expect.)

Trust in government seems qualified (which may be bad news for liberals but good news for civil libertarians): 73 percent of respondents agreed that the government was not telling them everything they needed to know about terrorism and the threat to America. Forty-four percent expressed considerable confidence in the government's ability to protect them, compared with 58 percent who said so last year. Fifty-six percent said that the government had protected the rights of people detained in connection with terrorism investigations, down from 64 percent last year. And 59 percent approved of racial profiling targeting Arabs and other people of Middle Eastern descent, compared with 66 percent last year.

The same poll also found people surprisingly divided over the perceived conflict between liberty and security. Presented with a choice, I'd have expected a strong majority to opt for security. But 44 percent of survey respondents agreed that "it's more important to ensure people's constitutional rights, even if it means that some suspected terrorists are never found." Forty-seven percent agreed that "it's more important to find every potential terrorist, even if some innocent people are seriously hurt." This was deemed a statistical tie.

Maybe I've set the bar too low, but I found this tied score heartening considering that only 7 percent of survey respondents said that they had lost important rights and liberties of their own to the war against terrorism. Seventy-eight percent said they had not been forced to forfeit their own rights. It's unduly optimistic to expect that public opinion will continue to shift slightly "toward concern for civil liberty," given the prospect of war and additional attacks. But these numbers do provide hope that people can appreciate liberty before they experience repression -- in other words, before it's too late.

About the Author

Wendy Kaminer is a former senior correspondent for The American Prospect and a contributing editor at The Atlantic Monthly. She also serves on the national board of the American Civil Liberties Union.

A lawyer, social critic, and former Guggenheim Fellow, she writes about law, liberty, feminism, religion, and popular culture. Her latest book is Free for All: Defending Liberty in America Today. Other books she has written include Sleeping with Extra-Terrestrials: The Rise of Irrationalism and Perils of Piety; True Love Waits: Essays and Criticism; It's All the Rage: Crime and Culture; I'm Dysfunctional, You're Dysfunctional: The Recovery Movement and Other Self-Help Fashions; and A Fearful Freedom: Women's Flight from Equality. Kaminer's articles and reviews have appeared in many other publications, including The New York Times, The Wall Street Journal, The Nation, and Newsweek, and her commentaries have aired on National Public Radio.

Before embarking on her writing career, Kaminer practiced law as a staff attorney in the New York Legal Aid Society and the New York City Mayor's Office.